Law Enforcement and the Law

What's in a sniff: Supreme Court considers drug dog use

Hearing arguments in Florida v. Jardines and Florida v. Harris today, the Supreme Court considers police drug dogs for the first time since the 2005 case of Illinois v. Caballes

Detector dog handlers across the United States should stay tuned to the United States Supreme Court today as the Court spends two hours hearing arguments in two cases: Florida v. Jardines and Florida v. Harris.

This is the first time since the 2005 case of Illinois v. Caballes that the Supreme Court will consider drug dog use by law enforcement.

In Caballes, the Court held that police officers do not need reasonable suspicion to justify a detector dog sniff of a car during an otherwise proper traffic stop.

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What Constitutes a Search?
Today’s cases offer the Court an opportunity to decide critical questions of whether a sniff outside a residence is a search and just how much evidence must be produced in court to show that a detector dog is sufficiently reliable to give probable cause to search a car when the dog gives a positive final response to the odor of controlled substances.

Clayton Harris was driving a truck with expired license plates in Blountsville, Florida, when he was stopped by a Liberty County deputy sheriff. Harris was breathing rapidly, shaking and was exceedingly nervous as the deputy spoke to him. Harris had an open beer can in the cab of the truck.

The deputy believed that Harris might be under the influence of drugs, so he asked Harris to consent to a search of the pickup truck.

Harris refused.

The deputy deployed his detector dog, Aldo, to sniff the exterior of the truck. Aldo gave a positive response at the driver’s side door handle. The deputy searched Harris’s truck and found precursor chemicals (200 pseudoephedrine tablets, 8,000 matches, muriatic acid and iodine crystals) for cooking methamphetamine. Harris admitted that he was a meth cook and that he had recently cooked a batch at his Blountsville home.

Harris was charged with unlawful possession of pseudoephedrine.

Harris challenged the reliability of the detector dog. The Florida Supreme Court agreed that the prosecution had not gone far enough to show that Aldo was reliable. The court noted: “We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.”

The Florida court’s ruling is at odds with many state and federal courts across the nation that hold that proper training and certification are sufficient predicates for supporting probable cause.

Establishing a Clear Guideline
The Supreme Court will likely resolve the Harris case by establishing a clear guideline for detector dog reliability to be applied by lower courts examining drug sniff challenges.

The United States Department of Justice and the State of Florida will argue that more rigid standards for establishing reliability of detector dogs will lead to less frequent use of an investigative tool that has proven valuable in the field and, after all, reveals only the presence of the odors of contraband.

The government will also assert that letting the Florida court ruling stand — at odds with the majority rule followed by other courts — will lead to confusion and continuing uncertainty about the law for law enforcement and for lower courts.

On the other hand, Harris’s attorneys will urge the Supreme Court to adopt a rule that requires detailed and meticulous performance, training and certification records to be produced in every detector dog case.

Knockin’ at My Front Door?
In Florida v. Jardines, an anonymous caller reported that Joelis Jardines was growing marijuana in his Miami home. Detectives and a detector dog team went to Jardines’ front door. The dog, Franky, gave a positive final response at the front door. The handler explained this to one of the detectives, who then took a deep breath at the door. He, too, could smell marijuana. The detective obtained a search warrant for Jardines’ home.

Officers caught Jardines running out the back door when they served the warrant. They found marijuana plants inside the house. Jardines asked the court to suppress the evidence obtained during the search warrant execution. He claimed that taking Franky to the front porch of his home constituted a “search.”

Several U.S. Supreme Court decisions have held that a “sniff is not a search” when a detector dog sniffs the exterior of luggage or a vehicle. In this case, the Court is being asked to decide whether Franky’s presence on the porch intruded on a legitimate expectation of privacy and constituted a search.

The government asserts that the detector dog cannot discern what is happening within the privacy of the home; the dog merely reports the presence of evidence of a crime (illegal drugs).

Jardines’ lawyers will push the rationale embraced by the Florida court, that is, that a drug detector dog mere footsteps from the threshold of a home intrudes into domestic privacy and reveals personal information (that the occupants hold illegal drugs) inside the home.

Decisions in each case are not expected for several months. Once decided, both the Jardines case and the Harris case hold tremendous potential for shaping how police agencies train, certify and keep records for detector dogs and where detector dogs may be used for enforcement purposes.

Police service dog handlers are hoping that the Supreme Court barks up the right tree.

About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.